1. This is an appeal on behalf of the second defendant in asuit commenced by the plaintiffs-respondents for possession of a holdingtransferred to him by the first defendant. The substantial question incontroversy between the parties throughout has been, whether the tenancy wastransferable and whether any valid right has been acquired by the appellantunder his purchase. The allegation of the plaintiffs was that the land was heldby the husband of the first defendant as a service-tenure and was nottransferable after his death by his widow. The answer of the defendant was thatit was not a service-tenure at all, that it was raiyati holding held by thefirst defendant and her predecessor at a uniform rate of rent from the time ofthe Permanent Settlement, and that it was consequently capable of transferunder the provisions of the Bengal Tenancy Act.

2. The Court of first instance negatived the contention ofthe appellant as to the nature of the tenancy. The Court further held that theholding was created before the Permanent Settlement and was held by thedefendant and her predecessor at a uniform rate of rent. In support of this conclusion,the Court relied upon the presumption mentioned in section 50 of the BengalTenancy Act. The Court also relied in the alternative upon the circumstances ofthe case and concluded that as the tenancy had been created at least in thetime of the great-grandfather of the husband of the first defendant and hadbeen held since then at a uniform rate of rent, the inference was legitimatethat it was a raiyati holding held at a fixed rate of rent and consequentlyalienable. In this view, the Court of first instance dismissed the suit. Uponappeal, the Subordinate Judge has held that the presumption mentioned insection 50 of the Bengal Tenancy Act has no application inasmuch as the suitcannot be regarded as a suit or proceeding under the Bengal Tenancy Act. Insupport of this view he has placed reliance upon the cases of Rasamoy v.Srinath : 7 C.W.N. 132, Sarat Chandra v. Shama Churn: 10 C.W.N. 930. In this view, the Subordinate Judge has heldthat the holding has not been proved by the defendant to be transferableholding. He has consequently reversed the decree of the original Court anddecreed the suit.

3. The second defendant has now appealed to this Court, andon his behalf it has not been contended that the view taken by the SubordinateJudge as to the scope and effect of section 50 of the Bengal Tenancy Act iserroneous, but it has been argued that his judgment is defective inasmuch as hehas omitted to consider whether the Court of first instance was justified ininferring from the circumstances of the case that, apart from the provisions ofsection 50 of the Bengal Tenancy Act, the holding had been proved to betransferable. In answer to this argument, it has been contended on behalf ofthe plaintiffs-respondents, that inasmuch as the provisions of section 50 areadmittedly inapplicable, it is not open to the Court to draw any inference fromthe circumstances of the case, because the effect of such a procedure would beto make the provisions of section 50 applicable to a class of cases to which itis conceded they have no direct application. In our opinion, this view cannotbe supported either upon principle or upon the authorities. The object of theLegislature in providing for the presumption as to fixity of rent mentioned insection 50 of the Bengal Tenancy Act was to provide in suits or proceedingsunder the Act, that is, in suits or proceedings between landlords and tenantsas such, an easy method of determination of the rights of the parties. It doesnot follow, however, by any means that in cases to which the section has noapplication, it is not open to the Court to draw any appropriate inference fromthe facts proved by the evidence on the record. In support of this view,reference may be made to the cases of Dinendra Narain Roy v. Tituram Mukerjee: 30 C. 801, Grant v. Robinson : 11 C.W.N.242; 5 C.L.J. 178, Nundolal Gossami v. Aturomoni Dassi 12 C.W.N. 432; 35 C. 673and Gulab Misser v. Kalanand Singh : 12 C.L.J. 107; 14 C.W.N.884; 6 Ind. Cas. 217 [LQ/CalHC/1910/184] .

4. The result, therefore, is that this appeal must beallowed and the decree of the Subordinate Judge set aside. The case will beremitted to him in order that the appeal may be re-heard and the question ofthe validity of the inference drawn by the Court of first instance from thefacts, apart from the provisions of section 50 of the Bengal Tenancy Act,considered. The learned Vakil for the respondent has suggested that the entireappeal ought to be re-heard and the question of the true nature of the tenancy,that is, whether it was a service-tenure or not, may be left open fordiscussion. In our opinion, this suggestion is reasonable. We, therefore,direct that the Subordinate Judge do re-hear the appeal and decide all thequestions which arise therein. Costs of this appeal will abide the result.

.

Nityananda Pal vs.Nanda Kumar Chowdhuri (06.06.1910 -CALHC)